As GamePolitics readers know, a Utah state legislator has introduced a Jack Thompson-crafted bill that would place retailers at risk of false advertising penalties if they fail to enforce content ratings for video games, DVDs and movie tickets.

After studying H.B. 353, Calvert pronounced it "fatally flawed," although not on the free speech issues. Instead, Calvert said that a lack of intent by retailers to sell games to minors essentially cancels out any false advertising claim.

This seems to be a backdoor attempt to use the ESRB’s voluntary rating system against sellers and distributors, assuming that some sellers and distributors actually do “advertise” that they don’t sell these games to a person “under the age restriction or recommendation”

The most obvious flaw with this legislation is that it conflates actual advertising (subsection i) with subsequent conduct (subsection ii) in order to create the offense. In addition, it lacks a key scienter (state of mind requirement) regarding intent to sell. Without this intent requirement, the measure is fatally flawed.

For instance, the current version of the Utah law on truth in advertising has another section that targets a person who “advertises goods or services or the price of goods and services with intent not to sell them as advertised.” It also has a section that targets a person who “advertises goods or services with intent not to supply a reasonable expectable public demand.” Both of these provisions include the critical intent requirement.

Not to help out Jack Thompson or his legislative tool, but the provision could be more carefully crafted to target a person who “advertises that he will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation but who in fact intends to sell such a good or service to a person under the age restriction or recommendation.”

Now let’s see if they make this change!

So, the bill is flawed in a legal sense, as opposed to a constitutional sense?

Yes.

False and misleading advertising is not protected by the First Amendment. On the other hand, advertising that is truthful and that pertains to a lawful product [like video games] or lawful service is protected by the First Amendment, although it still may be regulated if the government can prove that it has a substantial interest that is directly advanced or served by that regulation.

I find it highly unlikely anyone would intentionally say that they won't sell certain rated games to minors knowing that they will, in fact, sell them those games.

UPDATE: (adding a clarification)

GP: I'd like to clarify a point. The way the bill is crafted now, you maintain that it is flawed because the video game retailer has no intent to defraud.

So, if Utah added the intent to defraud to the bill's language, the statute would be technically legal. But from a practical standpoint it would be an almost impossible case to bring forward, since the retailers' efforts not to sell to minors are pretty clear evidence that they want to abide by ESRB and do not have an intent to defraud. Is this correct?

Calvert: Exactly. If some teenage clerk accidentally and unintentionally forget to check an ID and sold a game to a minor, that would not be punishable as long as the intent of the store owner (or whoever actually "advertises") had no intent for such an incident to happen and instructed employees not to sell to minors.

UPDATE 2: Thompson has forwarded comments. Hit the jump to read his response.

Dear Professor Calvert:

I appreciate your taking the time to weigh in on the Utah fraudulent trade practices bill. A couple of things I should like to note:

Rep. Morley is not my "legislative tool." Did you actually utter the following to Mr. McCauley: "Not to help out Jack Thompson or his legislative tool..."? If so, you owe Rep. Morley an apology. He's nobody's tool. He wanted to sponsor this bill.

Secondly, don't you think you and/or GamePolitics have an obligation to disclose that you are for a repeal of all obscenity laws? That's as extreme a position as one gets on the First Amendment...

Finally, you're wrong about the need for "intent" to be a state of mind only. When a business states, as does Best Buy, in its advertising, that it will not sell "Mature" games to kids under 17 but it does, then "intent" can be inferred. I know you're a "First Amendment lawyer" (meaning ACLU-type extremist), but you understand what "negligence" is, right? Saying you, as a company, don't do something, when the Federal Trade Commission says you do, and that its stings prove it, then you're fully on notice that your representations to the public are false...

Comments

The problem with this line of thought on the part of Mr. Jack Thompson is that it takes NO random factor into account and does NOT recognize that such instances can and DO occur and are beyond the capacity of any one person to have a situation or event conform 100% to a set of laid down ground rules. That by the way is in NO way disavowing responsibility, it is merely fact. There WILL be random occurences such as these, are you then saying that there is NO room for human error in this law if intent is NOT ( Or is. ) inferred? And if yes do you favor some sort of recompense on the part of the retailer to consumer/state government if said law is broken?

''Finally, you're wrong about the need for "intent" to be a state of mind only. When a business states, as does Best Buy, in its advertising, that it will not sell "Mature" games to kids under 17 but it does, then "intent" can be inferred. I know you're a "First Amendment lawyer" (meaning ACLU-type extremist), but you understand what "negligence" is, right? "

Um... correct me if im wrong here... but how can you intend to be negligent?

arent they opposite sides of the coin? The Concise Oxford Dictionary defines negligence as ‘want of proper care and attention’ . If you commit a certain action through 'lack of proper care or attention; then how the heck can you 'intend' to do it. Same if you flip it. If i 'intend' to do something, then im not in any way negligent. i INTEND to do it....

geez make some sense thompson.

" Saying you, as a company, don't do something, when the Federal Trade Commission says you do, and that its stings prove it, then you're fully on notice that your representations to the public are false... ''

Um didnt the FTC say that enforcement of age ratings on game sales were actually better than all other media? Um... have we just entered upside down land?

At the end, when Wheelie beat the Chopper Bunch, Scrambles (the mini bike) would go "I told ya! I told ya!" and Chopper would go "I know!" and they would repeat that over and over again till the credits rolled.

Sortableturnip's Law: As an online discussion of video game violence grows longer, the probability of a comparison involving Jack Thompson approaches 1

It notes the loopholes that are in the bill, but I have a question regarding the third loophole he found:

Loophole 3: EvidenceThe third loophole comes into play upon reading the rest of 13-11a-3. Many other practices have certain types of prima facie evidence, which has been neglected in this case. Prima facie evidence is evidence which automatically proves what is alleged unless it's disproven by the defendant.

Wouldn't closing this loophole then violate the Constitution's guarantee of due process in regards to the presumption of innocence?

Not really. Two horses of different colors. The presumption of innocence last unless and until guilt is proven. What's called the "burden of proof," (i.e., the burden of proving guilt), usually must be carried by the plaintiff. But, generally, once the plaintiff has presented enough evidence to force a conclusion of guilt unless the defendant proves otherwise, the burden of proof shifts to the defendant who must then prove their innocence. A prima facie (i.e. "on first look") case is one where the plaintiff's allegations alone, if true, inherently tend to shift the burden of proof to the defendant. The defendant still enjoys the presumption of innocence because they have yet to be proven guilty, but not for long unless they present evidence that forces a conclusion of innocence. If they successfully carry the burden of proving their inocence, the burden of proving the defendant's guilt shifts back to the plaintiff.

The classic example of a prima facie case is in tort actions with "res ipsa loquitor" (i.e. "the thing speaks for itself") allegations. Res ipsa loquitor basically means that the plaintiff's allegations alone force the conclusion that the alleged harm suffered could not have occurred unless a duty of care owed them was in fact breached. In these sorts of cases, the plaintiff need not prove, as they generally must do, that someone owed them a duty of care which was in fact breached. Upon the allegations alone (which speak for themselves), the burden shifts to the defendant to prove that they weren't the one who breached the duty of care resulting in the plaintiff's injuries. If they can't carry this burden, they're guilty.

It strike's me that it would be mildly (okay, possibly hilarious) that if the bill did somehow get passed the ESRB just dropped the ratings. While I'm pretty sure it would never happen for such a minor circumstance, that sure would show them.

Much more likely if the "gaming industry" can't get the bill shot down, I could see buisnesses just tweaking their policy to get around it.

Now that I actually think about the implementation, this really is a dumb bill, it relies on buisnesses being stupid, and a non-legally binding rating system. What do they hope to accomplish with this? It's a waste of time and money, even if passed it will probably do nothing.

Geeze Jacky. This guy is a first amendment EXPERT, you are a disbarred lawyer. He's trying to give you all the help you can get, he's trying to help you pass your bill...yet you throw it back in his face. Do you even actually want this bill to pass? If you did, you'd take his advice and alter the bill accordingly...

But then, "gamers" (and their associates) would have helped him in his quest...and that's a big no in Jacksville!

1. calling someone a "tool" in the common vernacular means that the speaker is euphemistically calling that someone a penis. If that was the intent, Rep. Morley may deserve an apology. Because that was not the intention, no apologies are required.

2. Who is against a repeal of all obscenity laws? No one here.

3. The last paragraph does not make a lot of sense, I asm assuming that under this legislation JT suggests that specific intent to contradict the legislation does not matter when, due to poor training or hiring decisions, youth are able to purchase mature titles. This being an example of criminal negligence.

That is an interesting arguement, but without any direct presedence, it would be up to a judge to decide whether this is indeed criminal negligence or not. Based on similar legislation and the overall asuccess rate of JT in these matters however, I know what I would be expecting from that. And that is presuming the success of the bill.

Damn skippy he makes not a lick of sense. He throws the word "negligent" out there and then proceeds to talking about things that have absolutely nothing to do with the concept of negligence.

I think what he's trying to say is that the legislation doesn't require a scienter element because the FTC has already determined that age-restricted videogames are in fact inappropriately sold by retailers and therefore any advertising by a retailer that it doesn't inappropriately sell age-restricted videogames is inherently false or misleading, regardless of scienter. Which is nothing more than a simmering crock of pure bullshit.

Rep. Morley is not my "legislative tool." Did you actually utter the following to Mr. McCauley: "Not to help out Jack Thompson or his legislative tool..."? If so, you owe Rep. Morley an apology. He's nobody's tool. He wanted to sponsor this bill.

I think tool is a pretty good description of him. You are using him as a tool to further your agenda as you could not get this legislation introduced without him. So tool works.

Secondly, don't you think you and/or GamePolitics have an obligation to disclose that you are for a repeal of all obscenity laws? That's as extreme a position as one gets on the First Amendment...

Don't you think that you need to disclose that you were disbared for unethical and abusive behavior? Or that you believe that those who don't agree with you should be exicuted?

Finally, you're wrong about the need for "intent" to be a state of mind only. When a business states, as does Best Buy, in its advertising, that it will not sell "Mature" games to kids under 17 but it does, then "intent" can be inferred. I know you're a "First Amendment lawyer" (meaning ACLU-type extremist), but you understand what "negligence" is, right? Saying you, as a company, don't do something, when the Federal Trade Commission says you do, and that its stings prove it, then you're fully on notice that your representations to the public are false...

Intent and negligence are not the same thing. Intent means it was on purpose. Negligence denotes an accident. Learn to use a dictionary.

People make mistakes. AS a christian you should know that. Just because a clerk thinks someone is old enough and sells a game to them does not mean that the store was intentionally selling games to minors.

"Don't you think that you need to disclose that you were disbarred for unethical and abusive behavior?" ZING. Jack may as well accuse liquor stores of selling booze to minors too with his amazing arguement.

For the last point, I need to make some comment:
True, accidents do occur. However, if it happens frequent enough this means the claim is not enforced effectively which can be inferred as false advertising in the eyes of law and this is what Jack means.

but thats the point.. EVEN if (and im really stretching it here) what you say is true.. the FTC studies actually show that enforcement of game age ratings are actually BETTER than any other type of media....

Funny part is that when he thought there was a possibility that the ACLU would buy into his disciplinary case as an amicus curiae before the Florida Supreme Court on First Amendment grounds (see, e.g., the Sean Conway case), he signed up for a membership and was kissing their asses 'til his lips blistered.

Lord have mercy. Jack Thompson is so completely ignorant about this area of law that it boggles my mind that he could convince anyone of his ability to draft legislation.

Jack, you moron, you completely miss the point Mr. Calvert makes. What he's saying and what you obviously don't understand -- but should have if you read closely and compared the various enumerated offenses under the statute -- is that when the advertising is not patently false or misleading but only rendered false or misleading by the advertiser's subsequent conduct (which is precisely what the language of your legislation does) then the language of the legislation must include an element of scienter which qualifies the conduct as intentional. The legislation must neccessarily provide that the advertiser intended that their subsequent conduct render their advertisment false or misleading. If it doesn't provide a scienter element, then it effectively captures inadvertent conduct. Such a failure would indeed render the legislation fatally flawed. This ain't too hard for anyone to understand. Anyone but your ignorant ass, that is. God, Jack, you really are dumber than a cinder block.

I got the impression that he was referring to your bill, not its sponsor.

“He wanted to sponsor this bill.”

Perhaps but he certainly doesn’t sound too enthused or confident judging by his words to the Salt Lake Tribune and Deseret News.

“Secondly, don't you think you and/or GamePolitics have an obligation to disclose that you are for a repeal of all obscenity laws?”

No, why?He wasn’t talking about free speech or Constitution issues.

“When a business states, as does Best Buy, in its advertising, that it will not sell "Mature" games to kids under 17 but it does, then "intent" can be inferred.”

So Best Buy is intentionally instructing its employees to occasionally sell M-rated games to minors?Why?To what end?Why go through all the rigmarole to reprogram the registers to flag M-rated games and train employees when they could just drop the whole thing and sell to anyone?

Finally, you're wrong about the need for "intent" to be a state of mind only. When a business states, as does Best Buy, in its advertising, that it will not sell "Mature" games to kids under 17 but it does, then "intent" can be inferred.

Is he even serious? Because a few negligent store clerks sell games to minors by accident, that means Best Buy intends for it to happen? Does he know what "inferred" means?

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Internet troll > internet paladin

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Believe in something! Even if it's wrong, believe in it!
GET OFF MY PHONE!
-Glenn Beck

Jack, are we talking about the same Morley who is decidedly unoptimistic about your little bulletproof bill? And you're confused, again. The relevant "intent" isn't that of the retailers simply wanting to prevent selling inappropriate material to minors. You have to show that it was done deliberately with flagrant disregard; that is the "intent" you have to prove, and there's simply no way you can consistently and fairly distinguish that from an honest mistake.

Also, please link Best Buy's advertisement promise that they don't sell M-games to minors. I found nothing on their website outside of their providing of informational links about game ratings.

Um... correct me if im wrong here... but how can you intend to be negligent?

arent they opposite sides of the coin? The Concise Oxford Dictionary defines negligence as ‘want of proper care and attention’ . If you commit a certain action through 'lack of proper care or attention; then how the heck can you 'intend' to do it. Same if you flip it. If i 'intend' to do something, then im not in any way negligent. i INTEND to do it....

Who said Thompson's legislation doesn't raise colorable constitutional issues or is constitutional beyond dispute? Nothing Clay Calvert says leaves me with the impression that he's concluding anything of the sort. What's ya'll's support for that notion?

Beyond dispute? No, no dont misunderstand. jackie wrote (or encouraged, or just rubber stamped) a bill that was so vague that in itself is not contrary to the 1st amendment IF the retailers chose to follow his implied rules, ie they also migrated to bizarro world. None of that is likely, but the bill itself is not acutally contrary to anything as it does not DO anything.

As noted it would be neigh impossible to enforce but that has not stopped some laws in the past. Ex: Where I grew up was against the law to have sex in other then the missionary position. It was on the books but never heard of a case being tried. In that reference jackie was correct, the fact the law (if passed) will do nothing, does not detract from that.

Then again maybe I am to soft hearted, being against kicking a man when he is down. So help him up then resume kicking.

The beauty (irony) of this is for once jackie is right (well mostly). Yes I said he was right. He claims his suggested bill "raises absolutely no First Amendment issues," and apparently that is correct. Of course to make is 100% amendment soliable the wording in it is vague and suggestive to the point of meaningless and unenforceable.

If it was not for the fact that he is wasting much time and large chunks of tax payers money I would suggest letting him run with it until it is shot down in flames. The world can always stand for more humor.

Yup, ya got to give Jack some credit, he actually did create an anti-video game bill that is consitutional... sure it's a completely toothless bill that will not strike down any retailers and not actually effect the game industry in the slightest and thus it's not the massive astrike down Jack thikns its godnna be... but still it's constitutional and that should be enough to give a delusional man a good stroke of the ego.

Think about it: the insults and flames he has been target of here (deserved mind you) only served to show him (if only to himself) that he was holier then the Pope (no comment), smarter then Steven Hawkings, a better lawyer than Perry Mason (or was that Harvey Birdman?) and more a force of good (and fear) than the Batman.

I'm not so sure that under a First Amendment analysis a seller's policy on age-restricted goods and services would even qualify as "commercial speech" and therefore be subject to the less exacting rational basis test (i.e., substantial interest plus direct advancement). The commercial speech cases have tended to somewhat muddy the definition of commercial speech but, notwithstand this definitional confusion, it remains clear that the Supreme Court cases -- unlike the Utah statute's catch-all definition of advertising -- require that in order to be found commercial in nature, the speech in question must do nothing more than propose a commercial transaction. There's a strong case to be made that speech which does something more than merely propose a commecial transaction falls beyond the definition of commercial speech and is therefore subject to the more exacting strict scrutiny test (i.e., compelling interest plus narrowly tailored). If a court finds that a seller's stated policy regarding sale of age-restricted products is in fact non-commercial speech because it does something more than propose a commercial transaction and applies strict scrutiny, then Thompson and Morly can most likely kiss their pet project goodbye because very rarely does protected speech survive such exacting scrutiny as constitutional.

Voluntary or involuntary, it doesn't matter. What matters is whether, under a First Amendment analysis, a court will find that what the Utah Truth in Advertising Act defines as "advertising" is in fact advertising (i.e., commercial speech). If it isn't advertising under the more narrow First Amendment defintion, then it matters not whether it is false advertising or not because it's been found to be non-commercial speech, protected by the First Amendment, and a restraint of which must satisy the strict scrutiny standard.

So even if its a voluntary system that lets the local government take fines from those that have joined to gain what the incentives given to them not to sell mature media to minors, could that not happen either?

But rather what if its considered commercial speech? What then?

Gore,Violence,Sexauilty,Fear,Emotion these are but modes of transportation of story and thought, to take them from society you create a society of children and nannys, since adults are not required.

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Daniel Lewis: The only thing said i disagree with is the final quote on Men's experiences are seen to be universal but women are gendered,though doesn't anita say that games with male protagonists are male power fantasies,so in turn both are gendered03/31/2015 - 1:08pm

Daniel Lewis: i found the video to be much better than any of the TvW series and it's about time the positive women are put in the spotlight03/31/2015 - 1:06pm

Daniel Lewis: So feministfrequency released a positive female character video https://www.youtube.com/watch?v=gXmj2yJNUmQ03/31/2015 - 1:05pm

Daniel Lewis: I think the guy who made the direct leak said it was an april fools joke when a real one was announced03/31/2015 - 12:43pm

MaskedPixelante: No way Nintendo would let information like that get out. Remember, they shut down a memoir about the localization of Earthbound by enforcing a 20 year old NDA on the author.03/31/2015 - 12:42pm

james_fudge: Conster: the larger issue is that Ind. does not protect LGBTQ+ people under state law03/31/2015 - 12:11pm

PHX Corp: @MP I think it is confirmed(not an April Fools joke) http://mynintendonews.com/2015/03/31/nintendo-direct-confirmed-for-wednesday-april-1st/03/31/2015 - 12:00pm

Conster: Apparently Pence intends to amend SB101 so denying service isn't allowed - without explicitly protecting LGBT+ and while still allowing the many other things you can get away with now if it's motivated by your religious beliefs.03/31/2015 - 11:53am

MaskedPixelante: http://mynintendonews.com/2015/03/30/rumour-nintendo-direct-on-april-1st/ A supposed full leak of tomorrow's Nintendo Direct, so you can all laugh and laugh about how wrong it is.03/31/2015 - 11:35am

PHX Corp: http://kotaku.com/why-a-tekken-7-character-is-being-called-a-phoney-1694724959 Why a Tekken 7 Character Is Being Called a Phoney03/31/2015 - 10:08am

Michael Chandra: Argh. Anyway, I'm glad that move was made. Wonder if it counts, can he just declare it like that? 03/31/2015 - 9:27am

Zen: Conster - Good, it's a BS law that exists to just allow hate basically. Glad people are standing up to it. Sadly it should never have passed to begin with though.03/31/2015 - 8:39am

Zen: Nintendo Direct tomorrow it seems. Funny it will be on April 1st lol. http://www.ign.com/articles/2015/03/31/nintendo-direct-announced-for-tomorrow03/31/2015 - 8:38am

MaskedPixelante: http://www.destructoid.com/chris-charla-would-love-to-see-no-man-s-sky-on-xbox-one-289761.phtml Apparently Microsoft's famous "parity clause" doesn't apply if they thing your game will make them tons of money.03/31/2015 - 8:00am

Conster: Basically, he's claiming there's a state statute that allows him to invoke section 2 of SB101 and be exempt from it.03/31/2015 - 5:48am

Conster: "..military service veteran status, and any breach of this policy shall continue to be considered a material breach of the relationship with the City."03/31/2015 - 5:09am

Conster: Gen Con is in Indianapolis, right? Because its mayor signed an executive order that discrimination against LGBTQ (and other groups) is still not allowed: http://www.huffingtonpost.com/2015/03/30/greg-ballard_n_6972928.html03/31/2015 - 5:07am

Andrew Eisen: To the surprise of no one, that HD remake of the first level of Super Mario 64 has been DMCA'd. http://mario64-erik.u85.net/Web.html03/30/2015 - 10:54pm